A federal judge has turned down a request from Special Counsel John Durham for a ruling that a lawyer facing trial on a false statement charge was part of a wide-ranging “joint venture” involving Hillary Clinton’s presidential campaign, Democratic operatives, private investigation firm Fusion GPS and various technology researchers.
The decision issued Saturday afternoon by U.S. District Court Judge Christopher Cooper limits evidence and testimony prosecutors can offer against attorney Michael Sussmann at a jury trial set to get underway later this month.
The ruling spares the Clinton campaign and the Democratic National Committee the potential embarrassment of a federal judge finding they were part of a coordinated effort to level since-discredited allegations that candidate Donald Trump or his allies maintained a data link from Trump Tower to Russia’s Alfa Bank. The Clinton campaign disseminated that claim amid a broader effort to call out Trump’s ties to Russia at a time when U.S. intelligence agencies had revealed efforts by the Russian government to interfere in the 2016 election.
Durham has charged Sussmann — whose firm at the time, Perkins Coie, represented the Clinton camp and Democratic National Committee — with lying to the FBI in September 2016, when he approached the bureau’s top lawyer James Baker with what he described as evidence of links between Trump Tower and Alfa Bank.
Prosecutors say Sussmann presented his tip to Baker as simply a good-faith attempt to protect national security, when he was actually acting on behalf of the campaign and tech researchers he represented. Cooper said that permitting prosecutors to lay out evidence of such a broad, political conspiracy would amount to a “time-consuming and largely unnecessary mini-trial,” considering Durham has not charged Sussmann with conspiracy but only with a “narrow” false statement to the FBI.
Sussmann is one of just three people charged by Durham since he began his probe three years ago. The others are Kevin Clinesmith, who pleaded guilty to doctoring emails used to justify a surveillance warrant against Trump campaign foreign policy adviser Carter Page, and Igor Danchenko, the primary source behind former British intelligence officer Christopher Steele’s anti-Trump “dossier.”
Prosecutors often argue that statements that would otherwise be impermissible hearsay under federal trial rules should be admitted because they were uttered by members of a conspiracy and show those individuals working together. However, the rules also allow admission of such statements when the alleged joint venture wasn’t necessarily illegal.
In Sussmann’s case, prosecutors asked Cooper to rule in advance of trial that Sussmann was “acting in concert toward a common goal” with the pro-Clinton operatives, researchers and others. Such a ruling would have given the government attorneys more latitude to introduce emails against Sussmann, but the judge said the scope and membership of the alleged anti-Trump venture was too uncertain to make such a finding.
“The Court will exercise its discretion not to engage in the kind of extensive evidentiary analysis that would be required to find that such a joint venture existed, and who may have joined it,” wrote Cooper, an appointee of former President Barack Obama. “While the Special Counsel has proffered some evidence of a collective effort to disseminate the purported link between Trump and Alfa Bank to the press and others, the contours of this venture and its participants are not entirely obvious.”
Attempting to link Sussmann to such a conspiracy — particularly when he isn’t charged with it — would “essentially amount to a second trial on a non-crime,” he said.
In Cooper’s 24-page ruling, he also says he will permit prosecutors to question witnesses about the scope of an effort by technology researchers to study links in so-called Domain Network Service or DNS data between Trump Tower and the Russian bank. However, the judge said he will not permit Durham’s team to introduce evidence that a technology executive, Rodney Joffe, allegedly had doubts about the accuracy of some of the data.
In addition, Cooper said he is unlikely to permit evidence that Joffe “accessed some of the data in breach of certain cybersecurity-related contracts he or his companies had with the U.S. government.”
“Evidence of improper data collection by Mr. Joffe or others done without Mr. Sussmann’s knowledge is, at best, only marginally probative of his supposed motive to lie to the FBI,” Cooper wrote. “Moreover, whether Mr. Joffe, who is not on trial, violated the terms of any of his contracts with the government—let alone committed a crime—is the type of collateral issue that risks confusing the jury and distracting from the pertinent issues in the case.”
It’s unclear whether Joffe himself will testify. Sussmann had urged Cooper to force prosecutors to grant Joffe immunity, claiming that Durham had dangled the threat of prosecuting Joffe in order to pressure him the plead the Fifth rather than testify for Sussmann. Cooper declined to do so, saying he wouldn’t take such an extraordinary step, but he noted that the limits he has placed on the government’s lines of questioning about Joffe’s work might ease his concerns about self-incrimination.
Cooper spent part of his ruling explaining why he wouldn’t permit the government to introduce highly technical data about the data gathered by Joffe and his researchers, unless Durham provides more evidence Sussmann was aware of the technicalities and any obvious flaws in it when he presented it to the FBI.
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